Legal View - ET Spring 2016

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All in the Family

The accommodation of childcare needs

By Michael Hines

Any human resources practitioner will tell you that the duty of accommodation is one of the most frequently encountered and challenging issues that confront them. Despite the fact that this legal doctrine has been on the scene since the early 1980s, many questions, some fundamental, remain unanswered or in dispute.

Another observation that a practitioner might make would associate the multi-dimensional nature of the duty of accommodation - it relates to services and employment, as well as to more than a dozen "protected grounds" - with its evolutionary nature and the fact that different facets of the duty of accommodation have come to the forefront of legal analysis at different points in time. The earliest employment accommodation cases involved the intersection of workplace schedules and requirements with religious practices and beliefs. Then, for almost two decades, the primary employment focus was on the accommodation of disability and corresponding issues of access to work, compensation and job structure. Most recently, issues concerning gender expression (not to be confused with sexual preference) and transgender status, hardly contemplated a generation ago, are appearing with increasing frequency.

One facet of workplace accommodation to take centre stage lately concerns the protected ground of "family status." Although an original member of the list of protected grounds in Ontario's inaugural Human Rights Code in 1981, family status emerged as a regularly cited form of discrimination only in the late 1990s. It was not until a decision of the Supreme Court of Canada in 2002 called B. v. Ontario (Human Rights Commission) that family status was definitively interpreted in a broad way to allow consideration of individualized family characteristics (e.g., a specific child-care need), in addition to simple status-based characteristics (e.g., being married, adopted, a son, divorced).

This legal development invited the assertion of accommodative demands by employees based not upon what they were (e.g., a common-law spouse) but upon what needs they faced. But it was not only the law that was changing. The increasing prevalence and variety of such family-based needs in society mixed uncomfortably with workplace scheduling structures, often created many decades earlier and without reference to the reality of modern families. Single mothers, separated and divorced parents, and two-income families struggled with structures established in an environment where one parent worked and the other stayed home. The result has been a rising tide of claims seeking accommodation of family status "needs."

As in many areas of accommodation law, different approaches developed simultaneously and persisted side by side for several years. As family status cases came forward, adjudicators were quick to note that - unlike other protected grounds such as gender, age or disability - a particular family status, such as having children, was in most cases assumed voluntarily. Similarly, while the same disability (e.g., migraines) would lead to the same kind of impairment in two employees, the same family status (e.g., having an ailing father) might lead to radically different needs between two employees, depending on such collateral issues as the ability to afford care, the closeness of the familial relationship or the involvement of siblings or other potential caregivers. While adjudicators expressed no doubt that family status could qualify for accommodation, it was not at all clear when that would occur or what that might mean.

This confusion was reflected in cases decided by leading Canadian appellate courts. In a 2004 case known as Campbell River, the British Columbia Court of Appeal addressed a change in the work schedule of a social worker that interfered with her ability to care for her son, who suffered from a major psychiatric disorder. The arbitrator had observed that "the fundamental obligation for the care of children rests with the parent, not the employer," and had asked, "Can the Legislature have intended that the words 'family status' ... be read to shift some significant part of that fundamental obligation, from parents to employers?" He held that such family needs were not the sort of thing that required accommodation under human rights legislation.

The Court of Appeal disagreed, but expressed the human rights obligation in narrow terms, holding that a case of discrimination "is made out when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee" (emphasis added). The court observed that, although the test was met in this case, it would be difficult to make out a discrimination case in the vast majority of situations in which there is a conflict between a work requirement and a family obligation.

Campbell River was quickly criticized on two accounts. First, it was limited to a "change in a term or condition of employment." Did this mean that an employee whose family circumstances changed (e.g., a new child or a divorce) had no right to accommodation if the employment relationship remained static? Second, the need to show a "serious interference" with a "substantial" family obligation was inconsistent with case law pertaining to other protected grounds, where neither the extent of the interference nor the perceived importance of the accommodated restriction was relevant. Human rights advocates asked why accommodation of family needs should be regarded as a second-class right.

Shortly after Campbell River was decided, two companion cases, known as Seeley and Johnstone, arose under the Canadian Human Rights Act (applicable to federally regulated employees) and began to travel upward through the court system. In the spring of 2014, the Federal Court of Appeal released decisions in both cases that departed markedly from the Campbell River analysis.

First, the court expressly rejected the "substantial interference" test, holding only that an employee seeking accommodation must demonstrate an interference that "is more than trivial or insubstantial." However, the court limited the kinds of child-care situations that could generate accommodation needs to "obligations ... that have immutable or constructively immutable characteristics, such as those that form an integral component of the legal relationship between a parent and a child." The court stated that the child-care obligations at issue are those that parents cannot neglect without engaging their legal liability, such as leaving a young child without supervision at home in order to pursue their work. Conflicts created by parental choices (e.g., what school to attend), rather than legal obligations, would not receive protection.

A third consideration addressed the extent to which parties seeking accommodation have to demonstrate the steps they have taken to solve or limit the problem. The court stated that persons seeking accommodation of child-care concerns would be expected to take reasonable steps to limit those needs, showing, for example, that no other family members were available to reduce or eliminate the interference.

The issue of the accommodation of child care and other similar family status needs has yet to come before the Supreme Court of Canada. It does not appear that any such case has been dealt with in any arbitration, tribunal or court decision concerning an Ontario school board, whether in connection with employment or with the provision of services. It is simply a matter of time before one does. The cases demonstrate that such claims must be taken seriously and dealt with in a nuanced fashion. When one appreciates that, in addition to lost wages, Seeley and Johnstone were each awarded $35,000 in punitive and "pain and suffering" damages, the need for good decision-making in this complex and evolving area of the law becomes even clearer.

Michael Hines is a partner in the Ontario law firm Hicks Morley LLP. Michael advises school boards throughout Ontario and is a regular speaker at OPSBA conferences.